Allahabad High Court
Prahlad And Others vs State Of U.P. on 8 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1890
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 25.09.2019 Delivered on 08.11.2019 Court No. - 10 Case :- CRIMINAL APPEAL No. - 605 of 1982 Appellant :- Prahlad And Others Respondent :- State Of U.P. Counsel for Appellant :- Satish Chandra, Neeraj Sahu, Sushil Pandey Counsel for Respondent :- Govt.Advocate Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
Per; Hon'ble Justice Mohd. Faiz Alam Khan, J.
Heard learned counsel for the appellants and learned A.G.A. for the State.
2- This criminal appeal has been preferred by the appellants Prahlad, Suresh, Ram Jeewan and Vishwanath under Section 374(2) of the Cr.P.C. against the judgment and order dated 03.08.1982 passed by Vth Additional Sessions Judge, Sitapur convicting the appellant Suresh for imprisonment for life under Section 302 I.P.C. and one year R.I. under Section 323 read with Section 34 I.P.C. and appellants Prahlad, Ram Jeewan, Vishwanath for imprisonment for life under Section 302 I.P.C. read with Section 34 I.P.C. and one year R.I. under Section 323 I.P.C. read with Section 34 I.P.C. in Sessions Trial No. 445 of 1979 arising out of Case Crime No. 152 of 1978, Police Station Mishrikh, District Sitapur.
3- Appellants No.3 & 4 namely Ram Jiwan and Vishwanath have died during the pendency of this appeal and appeal with regard to them has been abated vide order dated 08.01.2019 and 11.04.2019.
4- The prosecution story as emerges from the record of the trial Court is that a written report, Exhibit-ka4 was presented by informant Inderdutt at 7:30 am on 11.06.1978 scribed by one Mahesh Prasad at Police Station Mishrikh, District Sitapur stating therein that Ramjiwan and ramdutt are his real brothers, they were inmical towards each other pertaining to the partition of their agricultural land and on the basis of this enmity Ram Jiwan lodged an FIR against Ramdutt and others for the offence under Section 452 I.P.C. and a case pertaining to that was pending in the Court. About 15 days before, there was some quarrel in between his nephew Satya Narayan and maternal grandson of Ram Jiwan, on which Ram Jiwan came to the house of Ramdutt with a ''lathi', in order to beat Satya Narayan and when he did not find Satya Narayan, he threatened to see them.
It was further stated that in the intervening night, his family members and Ramdutt along with his family members went asleep after taking their dinner. A lantern was lighting in each of the house. In the mid of night, Prahlad and Suresh armed with ''katta' (Country-made pistols) and Ram Jiwan and Vishwa Nath armed with ''lathi' (Stick), climbed on the roof of his (Inderdutt) house. Suresh pointed his pistol towards Inderdutt in order to murder him, on which Ram Jiwan told him that he is Inderdutt and not Ramdutt and he is not the person to be killed. On this, all accused persons with the help of a ladder reached in the Courtyard of Ramdutt's house, where he along with his family members was sleeping. They caught hold of Ramdutt and dragged him in a room (Kothri) of his house. Suresh fired a shot at Ramdutt in that ''Kothri' and Ramdutt ran towards his courtyard, where he was assaulted with ''lathi' by Ram Jiwan and Vishwanath. Ram Jiwan was commanding others to kill Ramdutt and when wife of Ramdutt attempted to save him, Ram Jiwan and Vishwanath also assaulted her. On an alarm raised by them, Nattharam, Sarju and Shripal and other villagers came to the house of Ramdutt and made a noise, where-on all accused persons ran away from the main door of the house of Ramdutta. He after arranging a bullock cart was coming to the police station for lodging the FIR, however, near village Karmasepur Ramdutt succumbed to the injuries and died.
5- On the basis of this written report, the Chick FIR, Exhibit-ka-8 was prepared and a corresponding G.D. Entry, Exhibit-ka-9 was made in the General Diary at ''Rapat No.9 dated 11.06.1978 at 7:30 am. Injured Smt. Rani wife of deceased Ramdutt was referred to the hospital for management of her injuries.
6- The investigation of the crime was entrusted to Shri Narayan Dutt Pandey, who at first conducted the Inquest (Exhibit-ka-10) of the dead body of Ramdutt, which was lying in a bullock cart at the police station and also prepared necessary papers for the purpose of post-mortem of the body of deceased i.e. Photo lash, Exhibit-ka-11, Challan Lash, Exhibit-ka-12, letter to the C.M.O., Exhibit-ka-13, Sample seal, Exhibit-ka-14 and Memo of Cloth (Sari), Exhibit-ka-15 of the wife of deceased, by which the body was covered. The dead body of the deceased was sent through Constable Bhoorelal for the post-mortem. The statement of the wife of deceased, who was present at the police station was also recorded by him along with the statement of other persons present there.
7- Smt. Rani wife of deceased, who was referred to P.H.C., Mishrikh for her medical examination was examined on 11.06.1978 at 8:30 pm. by P.W.-1/Ravi Shanker Tripathi, who after examining the injured prepared a medical report (Exhibit-ka-1). He also noted following injuries on her person :-
Injury No.1/Contusion 4" x 2" on the outer side of the left arm just below the shoulder.
Injury No.2/Contusion 2½" x 2" on the right side of the chest 6" below the axilla.
Injury No.3/Contusion 3" x 2" on the left buttock.
Injury No.4/Contusion on 4" x 4" on the left side of the back 3" below shoulder and 3" from middle.
In the opinion of Dr. Tripathi these injuries were simple, appeared to be caused by some blunt weapon like lathi and at the time of the examination all injuries were found more than half day old.
8- On 11th June, 1978 at 4.15 pm. the post-mortem examination on the body of late Ramdutt was performed at the district mortuary by P.W.-2, Dr. L.P. Shukla, the then M.O. District Hospital, Sitapur and he also prepared a report Ex.ka-2. At the time of post mortem rigor mortis was present in upper and lower limbs of body and there was no sign of decomposition. Dr. Shukla came to the conclusion that the death of the deceased had occurred about half day before. He also found following antemortem injuries on the body of the deceased :-
Injury No.1/Multiple contusion in an area of 30 cm. x 8 cm. on left shoulder and upper arm upto left elbow on postero-lateral aspect.
Injury No.2/Multiple contusion in an area of 33 cm. x 28 cm. on whole of the back left side.
Injury No.3/Multiple firearm wounds of entry in an area of 9 cm. x 9 cm. on left side chest 6 cm. below nipple at 5:30' O clock position each wound measuring 0.3 cm. x 0.3 cm. x cavity deep margins inverted. Blackening present direction left to right and downwards.
Injury No.4/Abrasion 1 cm. x ½ cm. on front of left knee at patella line.
Injury No.5/Abrasion 1 cm. x ½ cm. on the right upper leg in front 7 cm. below knee.
Injury No.6/Abrasion ½ cm. x ½ cm. on the right upper part leg just below right knee.
The internal examination of the body disclosed that the 7th rib was punctured and left lung, pleura were lacerated and ruptured. Heart was empty. The chest cavity contained about 4 ozs of blood. Stomach contained 3 to 4 ozs of digested food. Both the intestines were full upto rectum. 24 small rounded pellets were recovered from the chest cavity. The blood stained ''angoochha' and ''Janeu' Exhibits ka-3 and 4 were found on the dead body and were sealed separately. In the opinion of Dr. Shukla death of Ramdutt was caused due to shock and hemorrhage resulting from the said antemortem injuries. He further opined that it was likely that after being injured Ram Dutt might have remained alive for 4-5 hours.
9. The Investigating Officer thereafter arrived at the spot, where he recorded the statements of the family members of informant and deceased and also prepared the Site Plan, Exhibit-ka-17. Four Tickli of cartridge was given to him by the informant, which was sealed by him at the spot and a memo, Exhibit- Ka-6 was prepared. He also inspected the lanterns of the house of Inderdutt and Ramdutt (Deceased) and prepared a memo, Exhibit-ka-5. He also inspected the torches of Nattharam, Sarju and Shripal and also prepared a memo, Exhibit-ka-3. After the transfer of the first Investigating Officer, Shri Narayan Dutt Pandey, the investigation was taken over by Sub Inspector Prem Madhava, who after recording the statement of scribe of FIR namely Mahesh submitted the Charge-sheet in the matter (Exhibit-ka-7) against all accused persons.
10. The case being exclusively triable by the Court of Sessions was committed to Sessions Court and charges under Section 302 I.P.C. and 323 read with Section 34 I.P.C. were framed against appellant Suresh, while charges under Section 302 read with Section 34 I.P.C. and Section 323 read with Section 34 of I.P.C. were framed against accused-appellants Prahlad, Ram Jiwan and Vishwanath. All accused persons pleaded not guilty and claimed trial.
11. The prosecution in order to prove its case beyond reasonable doubt relied on following documentary evidence:-
1. Written Report, Exhibit-ka-1
2. Chick FIR, Exhibit-ka-8
3. G.D. Entry of FIR, Exhibit-ka-9
4. Inquest report, Exhibit-ka-10
5. Photo Lash, Exhibit-ka-11
6. Challan Lash, Exhibit-ka-12
7. Letter C.M.O., Exhibit-ka-13
8. Sample seal, Exhibit-ka-14
9. Memo of Cloth (Sari), Exhibit-ka-15
10. Memo of ''dhoti' found on the dead body, Exhibit-ka-16,
11. Site Plan Exhibit-ka-17
12. Memo of taking ticklis provided by complainant, Exhibit-ka-6,
13. Memo of inspection of lanterns Exhibit-ka-5
14. Memo of examination of torches of witnesses Shripal, Sarju and Nattharam Exhibit-ka-3
15. postmortem report Exhibit-ka-2
16. Charge-sheet Exhibit-ka-7.
12. Apart from above mentioned documentary evidence, prosecution also testified following witnesses in support of their case:-
P.W.-1/Dr. Ravi Shanker Tripathi, (Doctor, who examined Smt. Rani) P.W.-2/Dr. L.P. Shukla (Doctor, who conducted the postmortem on the body of deceased Ramdutt) P.W.-3/Smt. Rani (Eye witness/wife of deceased) P.W.-4/Nattharam (Eye witness) P.W.-5/Inderdutt (Informant/eye witness) P.W.-6/Sarju Prasad (Eye witness) P.W.-7/Prem Madhav Shukla (Second Investigating Officer) P.W.-8/Constable Bhoorelal, (who took the body for postmortem) P.W.-9/Shri Ram Bahadur Verma, (Constable clerk who scribed FIR and G.D.) P.W.-10/Shri Narayan Dutt Pandey, (Ist Investigating Officer)
13. After the completion of the evidence of the prosecution, the statement of the all accused persons were recorded under Section 313 of the Cr.P.C., wherein all accused persons have denied the incident or any offence committed by them.
Accused Prahlad has further stated that he lives in his in-law's house situated about 16 miles away from the spot and he is a resident of village Daripur which is about 20 miles away from the village, where incident happened.
Accused Ram Jiwan in his statement has stated that no litigation was pending pertaining to the partition of agricultural land, the roofs of houses of Ram Dutt and Inderdutt are adjacent and also that he is having 03 daughters and he has given all his properties in their favour and his brothers were inimical towards him for this reason. Accused Vishwanath in his statement has stated that he lives about 16 miles away from the place of occurrence, Suresh is son-in-law of Ram Jiwan and his maternal nephew and, therefore, he has been falsely implicated.
14. Learned counsel for the appellants while referring to the judgment and order of the Trial Court submits that all the witnesses produced by the prosecution in this case are related to the deceased and informant. Independent witness Sripal and others, though were present at the spot, have not been produced by the prosecution.
He further submits that there was no motive alleged by the prosecution for the offence and a very strong motive is required to murder a real brother, therefore, the case of the prosecution is false.
He further submits that the First Information Report is ante-timed and in the facts and circumstances of the case could not be believed. According to him, deceased Ramdutt was killed by unknown persons in an incident of dacoity and due to enmity with the accused persons this false case has been carved out against the appellants with the help of local police. The incident is highly improbable. Source of light as shown by the prosecution could not be believed. No blood has been recovered from the room (kothri), where shot was allegedly fired and the medical evidence also does not corroborate the ocular evidence, therefore, the whole story of the prosecution is not believable.
He further submits that Prahlad has apparently been falsely implicated, as no role has been assigned to him by P.W.3- Smt. Rani, therefore, he could not be convicted with the help of Section 34 I.P.C.
He overwhelmingly submits that it is a case, wherein it is apparent that the false implication of the appellants has been done and the Trial Court has therefore erred in appreciating the evidence available on record and the appellants are liable to be acquitted of the charges framed against them.
In support of his submissions, learned counsel for the appellants relied on a case law namely Ezajhussain sabdarhussain vs State Of Gujrat reported in 2019(2)JIC 33(SC).
15. Learned A.G.A. on the other hand has stated that the prosecution has proved its case beyond all reasonable doubts and no illegality or even irregularity has been committed by the Court below in appreciation of evidence.
He further submits that the evidence of P.W.-3/Smt. Rani, P.W.-4/Nattharam, P.W.-5/Inderdutt and P.W.-6/Sarju Prasad is natural, trustworthy and reliable. The case being based on direct evidence the motive looses its significance, otherwise also it is evident and proved on record that parties were highly inimical towards each other.
He further submits that P.W.-3/Smt. Rani is a Rustic villager and minor contradictions appearing in her testimony should be seen in the background of her status, power of perception and reproduction. All witnesses of the fact have given a natural and reliable ocular account of the incident, whereby it is proved that appellant Suresh by firing shot at deceased Ramdutt committed his murder in furtherance of the common intention of all accused persons.
He further submits that the common intention of all the appellants/accused persons is evident by the manner in which, they climbed the roof of the deceased after arming themselves with country-made pistols and ''lathis' and the manner in which the deceased was taken in the inner room (kothri), where he was shot at by Suresh, while his hands were caught hold by accused appellants Ram Jiwan and Vishwanath, which clearly suggests that all accused persons were working in prosecution of their common intention.
He further submits that it is also proved that Prahlad has pointed his pistol towards the son of deceased namely Satyanarain and therefore, the manner in which all the accused persons departed after committing the crime through the main door of the house of deceased Ramdutt is also sufficient proof that they were sharing a common intention to murder deceased Ram Dutt. Therefore, there is nothing wrong in the Judgment of the Trial Court, whereby the accused Suresh has been convicted for the offence under Section 302 of I.P.C. and rest of the accused persons were convicted for the offence of murder with the help of Section 34 of I.P.C.
Learned A.G.A. in support of his arguments relied on following case laws:-
1. State Of Rajasthan vs ANI alias Hanif and others reported in 1997 Supreme Court Cases (Cri) 851.
2. Ramesh Singh @ Photi vs State Of A.P. reported in (2004) 11 SCC 305
3. Ramaswami Ayyangar and Othrs vs State Of Tamil Nadu reported in 1976 Supreme Court Cases (Cri) 518.
4. Vijender Singh Vs State Of UP reported in 2017(1)JIC 328(SC).
5. Rajkishore Purohit vs State Of Madhya Pradesh & Others reported in 2017 Supreme Court Cases (Cri) 483.
6. Balwant Singh & Othrs vs State Of punjab, reported in 2008 CRI.L.J. 1648.
16. Having heard the arguments of learned counsel for the rival parties, it appears in the interest of things that a brief survey of the testimony of the prosecution witnesses be made, so that the arguments of the rival parties may be appreciated in a better way.
P.W.-1/Dr. Ravi Shanker Tripathi is the Doctor, who has examined Smt. Rani wife of deceased on 11.06.1978 at P.H.C., Mishrikh at 8:30 am in the morning. He has proved the injury report of injured Smt. Rani in his signature and hand writing and proved the same as Exhibit-ka-1. The details of the injuries noted by him have been given in paragraph No. 7 of this judgment.
P.W.-2/Dr. L.P. Shukla has conducted the postmortem on the body of the deceased Ramdutt at District Hospital, Sitapur on 11.06.1978 at 4:15 pm. He has proved the postmortem report in his handwriting and signature as Exhibit-ka-2. The details of the injuries and other particulars noted by him pertaining to the body of the deceased Ram dutt has been elaborately mentioned in Para no. 8 of this Judgment.
P.W.-3/Smt. Rani is the wife of deceased Ram dutt and in the facts and circumstances of the case, she is the star witness of instant crime. She has stated that there was some dispute in between her husband Ramdutt and Ram Jiwan pertaining to their agriculture land. She further stated that Ram Jiwan had instituted a criminal case against her husband, son, complainant Inderdutt and his son. She further stated that the house of Inderdutt/complainant is adjacent to her house. About 01 year and 11 months ago, when she, her husband, her son as well as her daughters were sleeping in the courtyard of the house and a lantern was lighting outside the room, at about mid night all accused persons descended, through a ladder from the roof of her house, in her courtyard. Suresh and Prahlad were armed with country-made pistols, while Ram Jiwan and Vishwanath were armed with ''lathis'. They dragged her husband Ramdutt in the inner room situated towards east of her house, where Ram Jiwan and Vishwanath caught hold the hands of her husband and accused Suresh fired at Ramdutt. Her husband in order to save himself ran towards courtyard and fell there, where Vishwanath and Ram Jiwan assaulted him with ''lathis'. She covered her husband and requested the accused persons not to beat him, on which, she was also assaulted. On an alarm raised by her and her brother-in-law Inderdutt from the roof of her house and by Shripal, Natthu and Sarju who came at the spot, all accused persons fled from the main door of her house. After the departure of the accused persons above witnesses came in her house with torches and ''lathis' along with Inderdutt and she told the whole story to them. Her husband at that point was alive. They were taking him in a bullock cart to the police station along with other persons of the village and when they reached near village Karmasepur, her husband died. The FIR of the incident was lodged by Inderdutt, which was written by Mahesh Master.
P.W.-4/Nattharam is the first cousin of deceased Ramdutt, Inderdutt, complainant/informant as well as of Ram Jiwan. He stated that at about mid night he heard gunshot sound and took his ''lathi' and torch and rushed towards the house of Ram Dutt. When he arrived near the house of Inderdutt, he heard shouts from within the house of Ramdutt and also that accused persons Suresh, Prahlad, Ram Jiwan and Vishwanath were assaulting the inmates of the house.
He further stated to have seen accused Suresh and Prahlad armed with ''katta' (Country-made pistol) and Ram Jiwan and Vishwanath armed with ''lathis' emerging from the main door of the deceased Ramdutt. Sarju Prasad and Shripal were also holding torches in their hands. When he went inside, he saw that Ramdutt was unconscious and the wife of deceased Ramdutt told them that her husband has been dragged in the ''Kothri' by accused persons and when her son Satyanarain attempted to intervene, Prahlad took him on gun point and at that time, Suresh fired at her husband who after being hit ran towards the courtyard to save himself and when she attempted to save her husband, she was also beaten with ''lathis' by them.
P.W.-5/Inderdutt is the informant of this case, who stated that a criminal case was lodged by Ram Jiwan against him, deceased Ram dutt and other persons and also that about 15 days before the murder of Ramdutt, there was a quarrel in between Satyanarain and the grand-maternal son of Ram Jiwan, on which, Ram Jiwan came to the house of Ram dutt with a ''lathi' and when he did not find Satyanarain, he intimidated that he will see them. He further stated that at the relevant time, he was lying on his cot at the roof of his house. The house of Ramdutt is adjacent to his house and there is a ladder for the purpose of climbing on the roof of their houses. He saw that accused persons Suresh and Prahlad armed with ''katta' and Vishwanath and Ram Jiwan armed with ''lathis' climbed on his roof and Suresh pointed his pistol towards him, when Ram Jiwan intervened and told Suresh not to shoot, as he was Inderdutt and not Ramdutt. At this, all accused persons descended in the courtyard of Ramdutt through the ladder and dragged Ram Dutt towards ''kothri', wherein accused Suresh fired at Ramdutt.
He further stated that, when Ramdutt ran towards the courtyard, he was assaulted by Ram Jiwan and Vishwanath by ''lathis' and when wife of deceased Smt. Rani attempted to save him, she was also assaulted by them. On an alarm raised by them, Nattharam, Sarju Prasad, Shripal came at the spot with ''lathis' and torches and when all of them raised an alarm, accused persons ran away from the main door of the house of Ramdutt.
He further stated that he after arranging a bullock cart was carrying Ramdutt to the Police Station, however Ramdutt died on the way and he after getting a report written by Mahesh master informed the police. He also stated that when the Investigating Officer came, he showed him the lantern of his house as well as of Ramdutt's house and handed over 04 tiklis of cartridge to the Investigating Officer.
P.W.-6/Sarju Prasad is an eye witness, who came along with Nattharam, who is his real brother. They are living nearby with three or four houses falling in between. He corroborated the testimony of Nattharam that they heard a noise and a gunshot sound at mid of night and arrived outside the house of Ramdutt and saw Sarju, Prahlad, Ram Jiwan and Vishwanath armed with ''katta' and ''lathis' emerging from the main door of Ramdutt. He also stated that there was high pitch enmity in between Ram Jiwan and Ram Dutt. He also stated that about 15 days prior to the instant incident a quarrel had occurred in between son of Ram Dutt i.e. Satyanarain and grand-maternal son of Ram Jiwan i.e. Raj Bahadur. Accused Ramjiwan thereafter came to the house of Ramdutt to beat Satyanarain and when did not find him, he threatened to teach him a lesson.
P.W.-10/Shri Narayan Dutt Pandey is the first Investigating Officer of the case and he stated to have conducted the inquest and prepared a report, Exhibit-ka-10 and also prepared necessary papers for the purpose of postmortem, Exhibit-ka-11 to Exhibit-ka-15 and also took the ''Saree' in his custody by which the dead body of ramdutt was covered and he also inspected the lanterns and torches.
He further stated to have seized 04 tiklis of cartridge given to him by the complainant and also that he recorded the statement of witnesses Smt. Rani, Natthu, Sarju, Sripal and Ramdutt and other persons. He also stated to have collected the material sent from the postmortem house.
P.W.-7/Shri Prem Madhava Shukla is the 2nd Investigating Officer, who stated that he after recording the statement of Mahesh Prasad submitted a charge-sheet, (Exhibit-ka-7).
P.W.-8/Constable Bhoorelal has submitted to have taken the dead body of Ramdutt to the hospital for the purpose of postmortem in a sealed condition and did not allow anyone to touch the body.
P.W.-9/Shri Ram Bahadur was Constable clerk at the relevant time at Police Station Mishrikh, who stated to have written the Chick First Information Report, Exhibit-ka-8 and entry of G.D., Exhibit-ka-9 in his handwriting.
17. Learned counsel for the appellants submits that all witnesses produced by the prosecution are related to the deceased and informant and independent witnesses including Sri Pal were not produced by the prosecution.
He further submits that conviction could not be based on the evidence of interested witnesses, when the prosecution has deliberately withheld independent witnesses.
Learned A.G.A., however, confronted this argument on the basis that all prosecution witnesses of this case are the most natural witnesses, as they are either inmates of the house of deceased or were residents of the same village.
In Dalip Singh and Ors. v. The State of Punjab MANU/SC/0031/1953 : [1954]1SCR145 it has been laid down as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely, Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
In Appabhai and Ors. vs. State of Gujarat, MANU/SC/0028/1988 The Supreme Court held as under :-
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties.
The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
Hon'ble Supreme Court in Gangabhavani vs. Rayapati Venkat Reddy and Ors. , MANU/SC/0897/2013 held as under :-
"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.(Vide: Bhagaloo Lodh and Anr. v. State of U.P. MANU/SC/0700/2011 : AIR 2011 SC 2292; and Dhari and Ors. v. State of U.P. MANU/SC/0848/2012 : AIR 2013 SC 308).
12. In State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 : AIR 1981 SC 1390, this Court held:
"5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the Respondents."(Emphasis added)(See also: Chakali Maddilety and Ors. v. State of A.P. MANU/SC/0609/2010 : AIR 2010 SC 3473)."
"14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."
Perusal of the record would reveal that accused Ram Jiwan, deceased Ram Dutt and informant Inderdutt were real brothers. Ram Jiwan being the eldest and Inderdutt being the youngest brother. It is also stated by the witnesses that during the lifetime of his father, accused Ram Jiwan started living separately and doing separate cultivation after getting a portion of land from his father, while other two brothers Ram Dutt and Inderdutt remained with their father. However, at the time of incident, all brothers were living separately. Therefore, it is a unique case, where a real brother has been killed by another real brother and the informant of the offence is the third real brother. In the First Information Report, it has been stated that when Ram Dutt, his wife and their children went asleep after taking their dinner, at about mid of night, Prahlad and Suresh armed with ''katta' and Ram Jiwan and Vishwanath armed with Sticks (lathi) came to the roof of Inderdutt, where he was sleeping. Suresh pointed his pistol towards him and at that moment, accused Ram Jiwan informed him that the person standing in front of him is Inder Dutt and not Ram Dutt and he is not the person, to be killed. Thereafter, all accused persons went in the Courtyard of deceased Ram Dutt through a ladder and all of them took Ram Dutt in a ''Kothari' (Inner room) and there Suresh fired at deceased Ram Dutt, while Ram Jiwan and Vishwanath were holding the hands of deceased and Prahlad was pointing his country-made pistol towards Satyanarain (son of deceased Ram Dutta). Ram Dutt in order to save himself ran towards courtyard, where Ram Jiwan and Vishwanath assaulted him with ''lathis' and when his wife Smt. Rani came in between, she was beaten too. Nattharam, Sarju and Shripal and other people of the village stated to have arrived at the scene holding sticks and torches in their hands and all of them saw all accused persons emerging from the main door of the Ram Dutt. When the witnesses went inside the house, the whole story was told to them by P.W.-3/Smt. Rani and, thereafter, Ram Dutt was being taken to police station in a Bullock cart, however, he died on his way.
P.W.3/Smt. Rani has narrated the whole story in detail as to how her husband was killed. She stated that in the ''kothri', Ram Jeewan and Vishwanath had caught hold of the deceased, while Suresh fired at him from a country-made pistol and in the courtyard also, her husband and she were beaten by Vishwanath and Ram Jiwan. She also stated about the arrival of witnesses Sripal, Nattha and Sarju outside her house who saw the accused persons emerging out from the main door of her house. In her cross-examination, she stated that Nattha and Sarju are real brothers and Sarju was an accused in proceeding of Section 107, 116 of Cr.P.C. along with her husband Ram Dutt. She further stated that the houses of these witnesses are near to each other with 2-3 houses falling in between their houses.
P.W.-4/Nattharam and P.W.-6/Sarju Prasad have stated about hearing of a sound of gunshot and also shouts coming from the Ramdutt's house and that they took ''lathi' and torches with them and reached at the door of the Ramdutt's house. Both of them stated to have seen, in the light of torches, all accused persons emerging from the main door of the house of Ramdutt and also that they saw pistols in the hands of Suresh and Prahlad and ''lathis' in the hand of Ram Jiwan and Vishwanath.
P.W.-3/Smt. Rani has also stated that after departure of accused persons, P.W.-4/Nattharam and P.W.-6/Sarju as well as P.W.-5/Inderdutt came in her courtyard and to them, she narrated the whole incident. It is evident that P.W.-4/Nattharam and P.W.-6/Sarju are the witnesses of only hearing the shouts coming out from the house of Ram Dutt and thereafter to have witnessed all accused persons emerging out from the main door of the house of Ram Dutt.
P.W.-5/Inder Dutt is also a witness of only the fact, as to what had happened on the roof and in the courtyard of the house of deceased Ram Dutt. Therefore, none of these witnesses was in a position to witness as to what had happened inside the ''Kothri' except P.W.-3/Smt. Rani who was inside the Kothri.
As said earlier, P.W.-4/Nattharam and P.W.-6/Sarju are real brothers and also first cousin of Ram Dutt, Ram Jiwan and Inder Dutt. Apart from them, only Sripal was named in the First Information Report as a witness, but has not been produced by the prosecution during trial. Apart from them, certain other persons have also stated to have gathered at the scene, but they have also not been produced by the prosecution. It is also an admitted fact that P.W.-4/Nattha and P.W.-6/Sarju are equally related to the deceased, informant as well as to the accused Ram Jiwan, and in the facts and circumstances of the case, all these witnesses appears to be natural witnesses of the crime. P.W.-4/Nattha and P.W.-6/Sarju only stated to have arrived outside the house of Ram Dutt on hearing a gunshot and shouts. Simply because of the fact that Sarju was arrayed as a party along with Inderdutt and Ram Dutt in a proceeding under Section 107 and 116 of the Cr.P.C. would not label his evidence as of an interested witness. P.W.-4/Nattharam @ Nattha is stated to have stood surety for Ram Dutt in a criminal case instituted by accused Ram Jiwan. This fact will also not make him inimical witness, as standing surety for first cousin (Ramdutt) will not array him as inimical towards accused Ram Jiwan. Therefore, keeping in view the whole evidence available on record, it emerges that P.W.-4/Nattha and P.W.-6/Sarju have only claimed to have witnessed accused persons running from the main door of the house of deceased and they have not claimed to have seen the incident which occurred inside the house of Ramdutt. Therefore, in the facts and circumstances of the case all these witnesses appear to be natural and impartial witnesses of the incident. Had they been interested witnesses they might have narrated a story of having witnessed the whole incident. Therefore, their testimony could not be discarded only on the basis of their relation with the deceased or informant as they are equally related with accused Ram Jiwan.
18. So far as the contention of learned counsel for the appellants, that a strong motive and reason is required to murder the real brother, is concerned, suffice is to say that a very strong motive and reason is also required to falsely implicate the real brother for the murder of his real brother. Therefore, we do not find any substance in this contention of learned counsel for the appellants and even if the prosecution witnesses are related to the informant or the deceased, their testimony could not be rejected outrightly and it is only that the same has to be appreciated and analyzed with care and caution.
It is also to be understood that the prosecution is not obliged to present each and every witness of the crime as its witness. Presenting of the witnesses is the prerogative of the public prosecutor and a witness about whom prosecutor is having prior information that he will not support the case of the prosecution, he is not obliged to present him. This argument may also be dealt with from another angle. The instant incident admittedly has happened in between real brothers. Therefore there will always be an apprehension in the mind of the independent witnesses that at some point of time in future, the accused persons and informant or victim may compromise the matter within themselves and by testifying themselves as witness, they will not like to earn bad blood of the accused persons.
Keeping in view all evidence, facts and circumstances of the case, in our considered view all the witnesses produced by the prosecution are natural and their otherwise truthful testimony could not be rejected on the ground of their relation with the deceased or informant, as they are equally related to accused Ram Jiwan also. In these facts and circumstances of the case, if independent witness Shripal is not produced by the public prosecutor and actually have been discharged, the same will not make the case the prosecution as doubtful.
19. The next submission of learned counsel for the appellants is that the motive, which has been alleged by the prosecution has not been proved and the evidence, facts and circumstances of the case suggests that accused persons were not having any motive to murder Ram Dutt, who was the real brother of accused Ram Jiwan and, therefore, the whole story of the prosecution appears to be fabricated and concocted.
The law pertaining to the motive is now not a debatable issue. The law is well-settled that in cases based on direct evidence of eye witnesses, the motive is not having much significance.
A three Judges Bench Of Hon'ble Supreme Court in Molu and others Appellants v. State of Haryana AIR 1976 SUPREME COURT 2499 opined as under :-
"11. Finally it was argued by the appellants, following the reasons given by the Sessions Judge, that there was no adequate motive for the accused to commit murder of two persons and to cause injuries to others. It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes. however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye-witnesses is credit-worthy and is believed by the Court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant. For these reasons, therefore, we agree with the High Court that the prosecution has been able to prove the case against the appellants beyond reasonable doubt."
Hon'ble Supreme Court in Krishna Pillai Sree Kumar and another v. State of Kerala, AIR 1981 SUPREME COURT 1237 held as under:-
"7. It is undisputed that some bad blood existed between the deceased on the one hand and the appellants on the other prior to the occurrence. The animosity may not have been very bitter but then it is too much to say that it could not possibly form a motive for the occurrence. The variation in human nature being so vast murders are known to have been actuated by much lesser motives. In any case, it is not a sine qua non for the success of the prosecution that the motive must be proved. So long as the other evidence remains convincing and is not open to reasonable doubt, a conviction may well be based on it."
In Praful Sudhakar Parab v. State of MaharashtraAIR 2016 SUPREME COURT 3107 Hon'ble Supreme Court stated as under :-
"16. One of the submissions which has been raised by the learned amicus curiae is that the prosecution failed to prove any motive. It is contended that the evidence which was led including the recovery of bunch of keys from guardroom was with a view to point out that he wanted to commit theft of the cash laying in the office but no evidence was led by the prosecution to prove that how much cash were there in the pay office. Motive for committing a crime is something which is hidden in the mind of accused and it has been held by this Court that it is an impossible task for the prosecution to prove what precisely have impelled the murderer to kill a particular person. This Court in Ravinder Kumar and another v. State of Punjab, 2001 (7) SCC 690 : (AIR 2001 SC 3570), has laid down following in paragraph 18:
"18........It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. In this connection we deem it useful to refer to the observations of this Court in State of Himachal Pradesh v. Jeet Singh {1999 (4) SCC 370 : (AIR 1999 SC 1293)}:
"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."
Keeping in view the above stated law we are of the considered opinion that the prosecution is not obliged to prove those facts which are either impossible for the prosecution to prove or which are locked up in the mind of the accused persons, as to what tempted them to commit the crime. Therefore, the cases which are based on direct evidence of the witnesses should be decided on the basis of quality and probative value of the evidence of such eye witnesses. In the instant case, there are certain admitted and proved facts, which persuade us to believe that there was enmity in between real brothers namely Ram Jiwan and Ram Dutt and, therefore, the same may be a reason for the accused persons to commit crime.
Perusal of evidence on record would further reveal that Ram Jiwan was not having any son and his two daughters were married. One of such daughters was married to accused Suresh . Suresh was admittedly living in the same village and was cultivating the land gifted to his wife by his father-in-law namely Ram Jiwan. It is also evident that accused Ram Jiwan during the lifetime of his father started living separately and was also cultivating his share of land, separately. It is also proved on record that he had gifted this land to his daughters by a gift deed. P.W.-3/Smt. Rani has Stated that total area of the land which came in the share of accused Ram Jiwan was about 6 acres, while Ram Dutt and Inderdutt remained with their father and after the death of their father Ramdutt and Inderdutt inherited about 16 ''Bighas' of land each, which they partitioned amongst themselves. However, there is nothing on record, which may suggest that any dispute pertaining to the partition of agricultural land was pending in any court.
Significantly, P.W.-3/Smt. Rani in her statement has stated that for the last 04 years, they were not on talking terms with accused Ram Jiwan and were not having any relation with them. It is also an established fact that accused Ram Jiwan lodged an FIR against Ramdutt, his son and also against Inderdutt, under Section 323, 452 of I.P.C. and in turn her husband also lodged a cross FIR.
P.W.-3/Smt. Rani in her statement has further stated that despite the fact that her husband (Ramdutt) was beaten in the incident, but Ram Jiwan lodged the FIR against them. This incident is stated to have happened about a little more than one year before the instant incident. It is also proved on record that both sides were also challaned under Sections 107, 116 of the Cr.P.C. It is also stated in the First Information Report and P.W.-5/Inderdutt has also stated in his chief-examination that about 15 days, prior to the instant incident, some scuffle had taken place in between maternal grandson of Ram Jiwan i.e. Raj Bahadur with the son of deceased Ram Dutt i.e. Satyanarain and Ram Jiwan, armed with ''lathi', came to the house of Ramdutt in search of Satyanarain and when he did not find him, he threatened to teach him a lesson. However, in cross-examination, P.W.-5/Inderdutt has denied to have seen this incident himself and has stated to have heard about the same.
Though, none of the party has stated that getting of more land by Ram Jiwan was the root of enmity in between them but all prosecution witnesses have stated that there was enmity in between the parties due to the agricultural land. Thus keeping in view that Ramjiwan, who got a bigger share of the agricultural land in comparison to Ram Dutt and Inderdutt and apparently Inderdutt and deceased Ramdutt were on the same side, taking of more agricultural land by Ram Jiwan and thereafter gifted it to his daughters and also the cultivation of a portion of that land by his son-in-law namely Suresh may be a cause of heart burning and bad blood in between the parties. Though, in the instant case, being a case based on direct evidence, the prosecution was not obliged to prove motive, but there are ample and sufficient reasons available to the parties to have bad blood and enmity in between, especially in the background of pendency of criminal cases between them.
20. It is further submitted by learned counsel for the appellants that the FIR in the instant matter is ante-timed and the local police has been instrumental in lodging the FIR ante-timed.
We have perused the evidence available on record in the background of this submission and have found that the instant incident had occurred at about midnight of the intervening night of 10/11.06.1978. The distance of Police Station Mishrikh is about 06 miles from the spot. It has been stated by P.W.-3/Smt. Rani and also stated in the First Information Report that deceased Ramdutt was being taken to the police station by a bullock cart and he, on the way died near village Karmasepur. The FIR in this case has been lodged by Inderdutt on 11.06.1978 at about 7:30 am. P.W.-3/Smt. Rani in her cross-examination has stated that she departed for the police station about 02 hours after the incident and when they reached near village Shivbhan, there was very heavy rain, which forced her to stop and take shelter in a school building and after waiting for about two hours, she resumed her journey towards the police station at about 4:00 a.m. and the police station is about 02 Kos away from village Shivbhan. She further stated to have arrived at the police station at the time of sunrise.
It is further stated by her that Mahesh master was with them and Inderdutt and Mahesh wrote the FIR at the gate of the police station. However, she could not recall as to from where the pen and paper was arranged and, thereafter, she was sent for medical examination.
P.W.-5/Inderdutt has also stated that Mahesh Master is brother of Karuna Shanker, who is the husband of his wife's sister and Mahesh wrote the FIR at the Mohare (mend) of the well of police station.
He further submits that the constable clerk at the police station asked him to give a written report and he got the paper from ''Tehsil' and lodged the FIR. He also corroborated the statement of P.W.-3/Smt. Rani that when they reached village Shivbhan, there was heavy rain.
P.W.-9/ Sub Inspector Ram Bahadur, who was posted as a Constable Clerk at the Police Station Mishrikh at the relevant point of time has proved in his statement that the written application was given to him by Inderdutt at 7:30 am. on 11.06.1978. He further stated to have written the Chick FIR, Exhibit-ka-8 and also recorded the substance in the G.D., Exhibit-ka-9. P.W.-10/Shri Narayan Dutt Pandey ( Investigating Officer) in his statement has proved the Inquest Report, Exhibit-ka-10 and also proved preparation of necessary papers for the purpose of postmortem. No cuttings or interpolations have been highlighted by the appellants in these documents. These witnesses have been cross-examined at length, but we have not found anything in their cross examination, from which an inference can be drawn that the FIR has been ante-dated or ante-timed. In our considered opinion, the FIR in the instant case is neither ante-dated nor ante-timed and in the facts and circumstances of the case, it is prompt and inspire confidence in this Court. Therefore, we do not find any substance in the arguments of learned counsel for the appellants that FIR is either ante-dated or ante-timed.
21. It has been further stated by learned counsel for the appellants that in fact deceased Ramdutt was killed in an incident of ''dacoity' by some unknown persons and with the help of local police, accused persons have been falsely implicated. He claimed that there was no source of light at the time of alleged incident and the medical evidence also does not corroborate the oral testimony. No tikli or blood has been found in the ''kothri', where Ramdutt was allegedly shot. No blood has either been found in the courtyard where part of the incident is alleged to have happened. The tiklis of Cartridge were given by the complainant to the Investigating Officer and there are inherent lacuna's, contradictions and improvements in the testimony of all prosecution witnesses, their presence on the scene of occurrence is highly doubtful and the prosecution has miserably failed to prove its case beyond reasonable doubt and the court below has committed a manifest error in convicting the appellants.
Ld. AGA however submits that the evidence of the prosecution witnesses is trustworthy and reliable and their presence at the scene of crime is natural. PW-3/Rani is an injured witness and minor contradictions occurring in her evidence should not be given much importance. The source of light is lantern lighting at the courtyard of deceased and the torches being held by the witnesses Natharam and sarju.
Hon,ble Apex Court in Vadivelu Thevar V/s state of Madras; AIR 1957 SC 614 held as under:-
"The contention that in a murder case, the Court should insist upon plurality of witnesses, is much broadly stated."
"The Indian Legislature has not insisted on laying down any such exceptions to the general Rule recognized in Section 134 quoted above. The Section has enshrines the well recognized maxim that "Evidence has to be weighed and not counted." Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon.
" Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution."
"Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony."
Vadivelu Thevar case (supra) was referred to with approval in many cases thereafter and it was held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. It is what the essence of Section 134 of the Indian Evidence Act, 1872. But, if there are doubts and suspicion about the testimony of such a witness the courts will insist on corroboration. Therefore, it is not the number and the quantity, but the quality which is material. The time tested principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth around it, is cogent, credible and trustworthy, or otherwise.
In Appabhai and Ors. vs. State of Gujarat, MANU/SC/0028/1988 it was observed that :-
"A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
Honble Apex Court long back in the matter of Bharwada Bhoginbhai Hirjibhai v State of Gujarat as reported in AIR 1983, 753, MANU/SC/0090/1983 while appreciating evidence of witnesses in the background of minor discrepancies laid down following principles:-
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
In Krishna Mochi and Ors. vs. State of Bihar, MANU/SC/0327/2002 relying on State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 it was opined by Hon'ble Supreme Court that normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.
In Gangadhar Behera and others v State of Orissa, reported in MANU/SC/0875/2002 it is held that" A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State (Delhi Admin.). MANU/SC/0093/1978. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties."
Therefore it is well settled that minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and hits the root of the matter, the defence can take advantage of such inconsistencies. However, every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. It is only the serious contradictions and omissions which may materially affect the case of the prosecution but not every contradiction or omission.
22. We have perused the evidence of prosecution available on record in the light of rival submissions and the principles enunciated in above cited case laws. The story of prosecution as contained in the FIR and stated by the prosecution witnesses, P.W.-3/Smt. Rani, P.W.-4/Nattharam, P.W.-5/Inderdutt and P.W.-6/Sarju is to the tune that in the intervening night of 10/11.06.1978 all 04 accused persons came to the roof of Inderdutt and Suresh pointed pistol on him. Ram Jiwan intervened and told Suresh that he is not Ramdutt and not the person to be killed, on which, all accused persons reached the courtyard of Ramdutt through a ladder and took Ramdutt to an inner room of the house (kothri), where Ram Jiwan and Vishwanath caught hold of the hands of Ramdutt and Suresh fired a shot at him and at that time, Prahlad was pointing his pistol towards Satyanarain. Ramdutt ran towards courtyard and fell there and Ram Jiwan and Vishwanath assaulted him with ''lathis' and when P.W.-3/Smt. Rani came to save him, she was also assaulted. On alarm being raised by Inderdutt from the roof, Smt. Rani from the courtyard and by Nattha, Sarju and others from outside the main door of the house of deceased Ramdutt, all accused persons ran through the main door of the house of Ramdutt and were seen by the witnesses in the light of torches. When witnesses went in the house of Ramdutt, they saw him lying unconscious and Smt. Rani told them about the whole incident.
From the evidence of P.W.-3/Smt. Rani, it is proved that she also got injured in the same incident, when she tried to save her husband from accused persons Ram Jiwan and Vishwanath. She in her statement has narrated the whole story as to how the accused persons took her husband inside the ''kothri' and Suresh fired at him. It is also stated by her that after the accused persons fled away through the main gate of her house, the witnesses including P.W.-4/Nattharam and P.W.-6/Sarju came in and she narrated the whole story to them.
P.W.-1/Dr. Ravi Shanker Tripathi is the person, who had examined Smt. Rani on 11.06.1978 at about 8:30 am. at P.H.C., Mishrikh and he found 04 contusion injuries on her person of the dimension of 4" x 2", 2½" x 2", 3" x 2" and 4" x 4" on left arm, right side of chest, left buttock and on the back of left shoulder, respectively. The injuries were stated about half day old. Therefore, the version of incident as stated by P.W.-3/Smt. Rani corresponds to the injuries found on her person, so is the time of incident. The postmortem of the deceased Ramdutt was conducted by P.W.-2/Dr. L.P. Shukla, who found multiple contusions on left shoulder, back of left side, abrasions on left knee, right upper leg, apart from multiple fire arm wounds of entry in an area of 9 cm. x 9 cm. on left side of chest of deceased. Each of this wound was measuring 0.3 cm. x 0.3 cm. and was cavity deep, the margins were inverted and blackening was present. On internal examination, 24 pellets were recovered from the chest cavity and the Doctor has opined that deceased might have died about at 4-5 am. on 10/11.06.1978. It is further opined by him that deceased might have remained alive for 4 to 5 hours after the incident. This statement of the Doctor perfectly matches with the facts of incident as stated by P.W.-3/Smt. Rani and P.W.-5/Inderdutt. So far as the time of death of deceased, the manner of ''marpeet' and the time of incident is concerned, medical evidence firmly corroborates the story of prosecution in material particulars and leaves no room for any suspicion.
23. As said earlier, P.W.-5/Inderdutt was sleeping on the roof of his house and was the first person, who met all the accused persons there. It is an admitted position that the roof of the houses of Inderdutt and Ramdutt are closely adjacent to each other. The evidence of this witness is related to the fact as to how all accused persons armed with ''katta' and ''lathi' came to his roof. How Suresh pointed his pistol towards him as he misidentified him as Ramdutt and Ram Jiwan corrected him by saying that he is Inderdutt and not Ramdutt, on which they went to the courtyard of Ramdutt and by dragging Ramdutt inside the ''kothri', Suresh fired at him while ramjiwan and vishwanath caught hold of him. What has happened inside the ''kothri' could not be seen by P.W.-5/Inderdutt and it appears that what he has stated about the incident happened in ''kothri' is based on information provided to him by P.W.-3/Smt. Rani, when he went to the courtyard after the incident. This witness has stated in his cross-examination that he raised an alarm from his roof and he did not see the accused persons inside the room (kothri) of the deceased's house . On overall scrutiny of the evidence of this witness we find his evidence as reliable, truthful and acceptable in the facts and circumstances of the case. Why accused persons spared him is not a fact which prosecution is obliged to prove. Nothing has come in the cross-examination of this witness, which may cast any doubt pertaining to his reliability. What was going on in the minds of accused persons at the relevant point of time could not be proved by the prosecution, but sparing of Inderdutt by the accused persons suggest only one inference that the common intention of all accused persons was to murder only Ramdutt. We are in agreement with the reasoning of the Trial Court that deceased Ramdutt was having a criminal background, as some cases pertaining to ''dacoity' had been instituted against him in the past and, therefore, he was a tough person. So the accused persons might have not seen Inderdutt as any danger or hurdle for them, while Ramdutt being a tough person with criminal background was a tough rival.
24. Now comes the testimony of two witnesses i.e. P.W.-4/Nattharam and P.W.-6/Sarju. These two real brothers have stated to have arrived at the house of Ramdutt after hearing gun shot and shouts. P.W.-6/Sarju has been arrayed as a party in a proceeding under Section 107, 116 of the Cr.P.C. with Ramdutt and Inderdutt, while Nattharam stood as a surety for Ramdutt in a criminal case instituted by Ram Jiwan. In our considered opinion, both these situations will not make or brand these witnesses as interested witness, for the reason that they were also equally related to the deceased and accused Ram Jiwan. We do not see any reason as to what benefit these witnesses will get in giving false evidence against Ram Jiwan, who is their first cousin, when no enmity of these witnesses with accused Ram Jiwan has been suggested. One important thing, which branded the testimony of these witnesses is their truthfulness as they have confined their evidence to the facts, which were possible for them to witness. They fairly stated that they remained out of the house of deceased Ramdutt and could only hear sounds coming from inside and they did not try to break open the main door. There is every probability and possibility that in the calm of night, these witnesses might have heard sound of gunshot and shouts. This reason is acceptable in the facts and circumstances of the case which persuaded them to reach at the spot. They have also stated to have witnessed the accused persons emerging from the main door of the deceased in the light of torches, which they were carrying with them. This is a common practice for the villagers to carry Torches whenever they go out in the night. There appears no confusion, with regard to the identity of the accused persons as all prosecution witnesses know accused persons from before the incident and we do not see any reason for not accepting, the otherwise reliable testimony of these witnesses.
25. As said earlier, what has happened in the inner room (kothri) has only been witnessed by P.W.-3/Smt. Rani, her family members and accused persons and other prosecution witnesses were not in a position to see as to what is happening inside the ''kothri'.
Having gone through the testimony of P.W.-3/Smt. Rani, it is apparent that she has given minute details of the occurrence, pertaining to the manner in which all the accused persons came in her courtyard and how they took the deceased in the ''kothri', where Ram Jeewan and Vishwanath caught hold of his hands and Suresh fired a shot from pistol. The whole occurrence with precision and minute details has been narrated by her. She has also stated that a lantern was lighting outside the room of his house and when Investigating Officer came to his house, the same lantern was lighting at that very spot and the Investigating Officer also examined it. This has also been corroborated by the Investigating Officer P.W.-10/Shri Pandey. The fact that the lantern was lighting at the place told by P.W.-3/Smt. Rani, has also been corroborated by P.W.-4/Nattharam and P.W.-5/Inderdutt. In the FIR also, it has been stated that in both the houses, lanterns were lighting. P.W.-3/Smt. Rani has also stated that she usually did not dim the lantern in the night. Therefore it is also proved that there was sufficient light in the house of the deceased to identify already known accused persons.
In her cross-examination P.W.-3/Smt. Rani stated that Suresh fired at his husband from a distance of about one and half length of hand and blood was oozing from the fire arm wound and he fell in the courtyard. She further stated that she was standing at a distance of about one hand from the deceased, when Suresh fired at him. According to her, in courtyard blood spread on to the earth, but due to heavy rain, which occurred that night, blood was washed away by rain water. It is also evident that multiple fire arm injuries have been found on the left side of the chest of the deceased having blackening around them which fortifies the statement of P.W.-3/Smt. Rani that the shot was fired from a close range. The non-finding of blood in the courtyard has also been amply explained by this witness when she stated that heavy rain had occurred at that night and whatever blood was spilled on the floor might have been washed away by the rain water. P.W.-5/Inderdutt have found tiklis of cartridge in the ''kothri' and had given to the Investigating Officer, who also prepared a memo of that.
Therefore, in our considered opinion, the evidence of all prosecution witnesses is consistent on the point of identification of accused persons, role played by all of them and firing of gun shot by Suresh on the deceased, when deceased was held by Ram Jiwan and Vishwanath and also about the assault given in the courtyard to the deceased as well as to P.W.-3/Smt. Rani by Ram Jiwan and Vishwanath. All accused persons have also been seen by P.W.-4/Nattharam, P.W.-5/Inderdutt and P.W.-6/Sarju, when they were running from the main gate of the house of deceased along with arms held by them. We do not find any reason as to why these witnesses, who are also related to the accused persons will give false evidence against them. The medical evidence also fully corroborates the ocular evidence of the incident. In our considered opinion the prosecution by its trustworthy, acceptable and reliable evidence has proved its case beyond all reasonable doubts.
26. At this stage, learned counsel for the appellants overwhelmingly submits that accused Prahlad has not been assigned any role by the star witness of this incident, P.W.-3/Smt. Rani and in her cross-examination, has made improvement pertaining to the role of Prahlad and the role assigned by her to appellant Prahlad was in response to a querry put by the trial judge asking her as to what was Prahlad doing at that time. Therefore, the Trial Court has committed a grave error in asking such question and also in convicting the appellant Prahlad for the offence of murder with the aid of Section 34 of I.P.C. He relied on Ezajhussain sabdarhussain vs State Of Gujrat reported in 2019(2)JIC 33(SC) Learned A.G.A., however, submits that P.W.-3/Smt. Rani is a rustic village women and small contradictions and improvements made by her are liable be ignored, she being illiterate.
He further submits that the manner in which accused Prahlad had accompanied the other accused persons with a ''katta' in his hand and also emerged with other accused persons from the main door of the house of deceased, clearly reveals that there was a common intention and plan of all accused persons to murder Ram Dutt, therefore, he has rightly been held guilty of murder with the aid of Section 34 of I.P.C. Learned A.G.A. has relied on State Of Rajasthan vs ANI alias Hanif and others reported in 1997 Supreme Court Cases (Cri) 851, Ramesh Singh @ Photi vs State Of A.P. reported in (2004) 11 SCC 305, Ramaswami Ayyangar and Othrs vs State Of Tamil Nadu reported in 1976 Supreme Court Cases (Cri) 518, Vijender Singh Vs State Of U.P. reported in 2017(1)JIC 328(SC), Rajkishore Purohit vs State Of Madhya Pradesh & Others reported in 2017 Supreme Court Cases (Cri) 483, Balwant Singh & Othrs vs State Of punjab, reported in 2008 CRI.L.J. 1648.
In State Of Rajasthan vs ANI alias Hanif and others reported in 1997 Supreme Court Cases (Cri) 851 also reported in 1997 CRI. L. J. 1529 relied on by Ld. AGA Hon'ble Supreme Court observed as under :-
"11. We are unable to appreciate the above criticism. Section 165 of the Evidence Act confers vast and unrestricted powers on the trial Court to put "any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant" in order to discover relevant facts. The said section was framed by lavishly studding it with the word "any" which could only have been inspired by the legislative intent to confer unbridled power on the trial Court to use the power whenever he deems it necessary to elicit truth. Even if any such question crosses into irrelevancy the same would not transgress beyond the contours of powers of the Court. This is clear from the words "relevant or irrelevant" in Section 165. Neither of the parties has any right to raise objection to any such question.
12. Reticence may be good in many circumstances, but a judge remaining mute during trial is not an ideal situation.A taciturn Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be a bout or combat between two rival sides with the judge performing the role only of a spectator or even an umpire to pronounce finally who won the race. A judge is expected to actively participate in the trial, elicit necessary materials from witnesses at the appropriate context which he feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during chief examination or cross-examination or even during re-examination to elicit truth.The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence collecting process. It is a useful exercise for trial judge to remain active and alert so that errors can be minimised."
We are also of the very strong view that The Role of trial Judge during trial of a criminal case could never be of a silent spectator. The criminal trial is nothing but a journey to unearth the truth as to what has actually happened at relevant time and it is the duty of the trial judge to remain actively involved in this process and should do every thing which may facilitate the truth to come on surface. The law can not favor anything but the truth. Therefore if the trial judge in a quest to know the truth put some questions to PW-3 Smt. Rani, it shows that the trial Judge was conscious of his role as a trial Judge. Our view finds support from the following observations of the Hon'ble Supreme Court in "Zahira Habibullah Sheikh and Ors. vs. State of Gujarat and others, AIR 2006 SUPREME COURT 1367" :-
"33. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrong in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process. not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in rational to proceedings, even if a fair trial is till possible, except at the risk of undermining the fair name and standing of the Judges or impartial and independent adjudicators.
46. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Courts cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands to such prosecuting agency showing indifference or adopting an attitude of total aloofness.
47. The power of the Court under Section 165 of the Evidence Act is in a way complementary to is power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution."
In Ramesh Singh @ Photi vs State Of A.P. reported in MANU/SC/0278/2004, (2004) 11 SCC 305, relied on by Ld AGA Hon'ble Supreme Court has opined as under :-
"Section 34 IPC embodies the principles of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted."
In Ramaswami Ayyangar and Othrs vs State Of Tamil Nadu reported in 1976 3 SCC 779 (1976 CRI. L. J. 1563), relied on by Ld. AGA it was observed as under :-
"12- ...........The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design. Such a person also commits an "act" as much as his co-participants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Sec. 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common, design, is itself tantamount to actual participation in the 'criminal act.' The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them."
Ld. AGA also relied on Vijender Singh Vs State Of UP reported in 2017(1)JIC 328(SC) wherein after considering many authorities on the subject it was held that in absence of any injury caused by a weapon carried by accused persons can not be the governing factor to rule out Section 34 IPC, if it is manifest from the evidence that the accused persons accompanied the other accused persons, who were armed with gun and they themselves carried lathi and ballam respectively. Carrying of weapons, arrival at a particular place and at the same time, entering into the shed where murder of the deceased was committed, definitely attract the constructive liability as engrafted under section 34 IPC.
In Rajkishore Purohit vs State Of Madhya Pradesh & Others reported in 2017 Supreme Court Cases (Cri) 483 relied on by Ld. AGA it is held that if common intention by meeting of minds is established in the facts and circumstances of the case, there need not necessarily be an overt act or possession of weapon is required, to establish common intention.
Similarly in Balwant Singh & Othrs vs State Of punjab, reported in 2008 CRI.L.J. 1648, relied on by Ld. AGA it is held that when persons go together armed with deadly weapons and fatal injuries are caused to the deceased all of them would be liable in view of Section 34 IPC.
Ld. Counsel for the appellants has also relied on Ezajhussain Sabdarhussain vs State Of Gujrat reported in 2019(2)JIC 33(SC) wherein Honble Supreme Court Opined as under :-
"14-..............Common intention denotes action in concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now wellsettled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King Emperor I.L.R. (1945) IndAp 148 common intention within the meaning of Section 34 implies a pre arrranged plan, and to convict the accused of an offence applying the Section it should be proved that the criminal act was done in concert pursuant to the pre arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.
15. The essence of the joint liability during the criminal act in furtherance of such common intention has been discussed by a twoJudge Bench of this Court in Ramashish Yadav and Others(supra) wherein it was held as under: "....Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a prearranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a prearranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be prearrangement or premeditated concert."
In the case Nand Kishore v. State of Madhya Pradesh reported in (MANU/SC/0753/2011 : (2011) 12 SCC 120), Hon'ble Supreme Court discussed the ambit and scope of Section 34 of Indian Penal Code as well as its applicability to a given case as under:
"20. A bare reading of this section shows that the section could be dissected as follows:
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that act in the same manner as if it were done by him alone.
In other words, these three ingredients would guide the court is determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 Indian Penal Code must be done by several persons. The emphasis in this part of the section is on the word "done". It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity.
21. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between "common intention" on the one hand and "mens rea" as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different.
22. Section 34 also deals with constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. "
Hon'ble Supreme Court in Asif Khan vs. State of Maharashtra and Ors. Reorted in MANU/SC/0323/2019 after considering Mehbub Shah v. Emperor MANU/PR/0013/1945, Pandurang and Ors. v. State of Hyderabad MANU/SC/0048/1954 and Mohan Singh and Anr. v. State of Punjab MANU/SC/0176/1962 held as under:-
"22. In Pandurang and Ors. v. State of Hyderabad MANU/SC/0048/1954 : AIR 1955 SC 216, Justice Vivian Bose, speaking for the Bench considered the ingredients of Section 34 and relying on Privy Council judgment in Mehbub Shah v. Emperor (supra) laid down following in Paragraph Nos. 32 to 34:
32..................
33. Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the Section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King-Emperor and Mahbub Shah v. King-Emperor. As Their Lordships say in the latter case, "the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice".
34. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a prearranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose.
23. The Constitution Bench of this Court in Mohan Singh and Anr. v. State of Punjab MANU/SC/0176/1962 : AIR 1963 SC 174 had again reiterated the ingredients of Section 34. Constitution Bench has also relied on and approved the Privy Council judgment in Mehbub Shah v. Emperor (supra) noticing the essential constituents of vicarious liability Under Section 34, Justice Gajendragadkar speaking for the Bench laid down following in Paragraph No. 13:
13. ...The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the Accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. In some ways the two Sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the Accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well-settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King-Emperor common intention within the meaning of Section 34 implies a pre-arranged plan, and to convict the Accused of an offence applying the Section it should be proved that the criminal act was done in concert pursuant to the prearranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case."
27. Having regard to the evidence of the prosecution witnesses as well as keeping in view the facts and circumstances of the case as well as the law discussed above, we do not find any force in this submission of learned counsel for the appellants. In the FIR, it has been specifically stated that all accused persons including Prahlad climbed the roof of Inderdutt and he was carrying a ''katta' (Country Made Pistol) along with Suresh, while other accused persons were armed with ''lathis'. When Suresh pointed his pistol towards Inderdutt, accused Prahlad was standing there along with other co-accused persons. When all of them descended in the courtyard of the deceased, Prahlad was also with them. When the deceased was dragged inside the ''kothri' , Prahlad was also with them and when Suresh shot at Ramdutt, while Ram Jiwan and Vishwanath were holding the hands of deceased, Prahlad was also with the accused persons. Only controversy is about the fact that P.W.-3/Smt. Rani has not assigned any specific act to accused Prahlad in his in-chief-examination or to say even in his statement under Section 161 of the Cr.P.C. However, in her cross-examination responding to a querry of the court she replied that when his husband was being shot at Prahlad took his son Satyanarain on gun point and his son could not do any thing. Though this has been stated for the first time by this witness in her cross-examination, however, we would like to emphasize that the best way to appreciate the evidence of any witness is to test and scrutinize the entire evidence of such witness on the touchstone of probability, keeping in view his status, power of perception and reproduction. Admittedly, P.W.-3/Smt. Rani is a rustic village lady. We in this judgment herein-before have already held that all the eye witnesses of this case except P.W.-3/Smt. Rani were not in a position to witness as to what had happened inside the ''kothri', where Suresh fired a shot at the deceased inside the ''kothri' and after being hit, deceased fell in the courtyard of the house, where again P.W.-5/Inderdutt was in a position to see him.
It is also evident from the evidence of prosecution witnesses PW-4/Nattha and P.W.6/Sarju that when accused persons fled away from the main door of the house of deceased, they saw Prahlad running with them, holding a country-made pistol in his hand.
28. As discussed earlier, it has also came in evidence that these 02 witnesses namely prosecution witness PW-No.4/Nattha and P.W.6/Sarju were holding torches in their hands, so it is also proved beyond any reasonable doubt that accused Prahlad was also seen emerging from the main door of the house of the deceased, along with other accused persons, with a ''katta' in his hand. P.W.4/Nattha has stated in his statement that when he entered the courtyard of the deceased after the incident was over, wife of deceased told him about the whole story and also as to how his son Satyanarain challenged accused persons, on which Prahlad took him on gun point. So it also transpires that so far as the part of incident which occurred in Kothri, pertaining to the pointing of katta towards satyanarain by Prahlad is concerned, the same was narrated to P.W.4/Nattha by P.W.4/ Smt. Rani when he entered her courtyard. Therefore, we do not find any reason to disbelieve the evidence of P.W.-4/Nattha and P.W.-6/Sarju, pertaining to the fact that they saw all accused persons running away from the main door of the house of deceased and Prahlad was also seen running with them holding a ''katta' in his hand. The whole prosecution evidence available on record clearly establishes that Prahlad was acting in furtherance a well-knit common intention of all accused persons to murder Ramdutt. The common intention of all accused persons to commit murder of Ramdutt could be gathered from the conduct of all accused persons before, during and after commission of the offence. Statements of the witnesses clearly reveal that all the accused persons were present at the scene of occurrence and were actively involved in accomplishing their part of common design. The conduct of appellant Prahlad in climbing the roof of P.W.-5/Inderdutt, at the mid of the night with other accused persons, holding a ''katta' in his hand and going with them to the courtyard of deceased and dragging him inside the ''kothri' and after the deceased was shot at by Suresh and Smt. Rani was assaulted by Ramjiwan and Vishwanath in courtyard, his running away from the main door of the house of deceased, along with other accused persons, are sufficient proof that the accused Prahlad was sharing a common intention and was acting in co-ordination with other accused persons to murder Ramdutt. Therefore, he has been rightly convicted by the Court below under Sections 302 I.P.C. read with Section 34 of I.P.C.
In view of the reasons given herein above, we do not find any force in this appeal and the same is liable to be dismissed.
29. The appeal filed by the appellants namely Prahlad and Suresh is, thus, dismissed and the judgment and order of the Court below dated 03.08.1982 is affirmed.
As per the record of this Court and report of office dated 16.10.2019, the appellants Prahlad and Suresh are in Jail. They will serve out the sentence as ordered by the Trial Court.
30. The appeal with regard to the appellants No.3 & 4 namely Ram Jiwan and Vishwanath has already been abated, on account of their death, vide orders dated 08.01.2019 and 11.04.2019 of this Court.
A copy of this Judgment be immediately sent to the trial Court for compliance.
(Mohd. Faiz Alam Khan,J.) (Devendra Kumar Upadhyay,J.) Order Date :- 08.11.2019 Praveen